Two weeks ago, a tragedy in Waynesboro became the focus of national attention. It involved a 13-year-old boy who shot and killed his brother during a game of “cops and robbers.” The teenager was charged with criminal homicide, a charge that covers crimes ranging from involuntary manslaughter to first degree homicide.
The charge is being criticized by criminal justice reform groups that say Franklin County District Attorney Matt Fogal should use his discretion to charge the minor with a less serious offense. But Fogal and the Pennsylvania State Police say their hands are tied by a law forged in the mid-1990s by the Pennsylvania legislature that requires all murder cases – regardless of age – be tried in adult court.
But the prosecutor – who has been the focus of a Philadelphia Inquirer profile as well as a New York Times story that both quote him as being sympathetic to the Black Lives Matter movement and the campaign for criminal justice reform – can indeed file a lesser charge against the minor in this case, reports Joshua Vaughn with The Appeal.
I spoke with Josh about his story. Below is an edited version of our conversation:
Joseph: Why did this case draw your attention?
Josh: First off, this happened two blocks away from where I used to live. But what drew me to it as far as a news item is the boy’s age. He’s 13, and we’re putting him into the adult system. Not only into the adult system, but also charging him with one of the most severe crimes for anything we have on the books, and we’re incarcerating him without bail. All of these things are adult consequences, and we’re leveling them onto a 13-year-old.
Joseph: The U.S. Supreme Court has said juveniles don’t comprehend their actions in the same way as adults, to the point where there have been at least three rulings that have limited juvenile sentences for severe crimes. What’s been the shift in how we treat juveniles?
Josh: When we began developing the idea of the juvenile justice system in the early 20th century, there was an understanding that children weren’t just small adults. There was an understanding that when children act out in a way we consider to be delinquent, part of that is a societal failure, that there was something missing in that child’s life that needed to be addressed. As crime rose in the 1970s into the ‘90s, our approach changed to “get tough” and a mindset of “adult time for adult crimes.” The thought was that if you’re committing a crime, you’re developmentally ready to be held accountable. And the reality is that’s just not the case.
Joseph: What do you mean by that?
Josh: A juvenile acting out in violent ways is probably a sign that the young person is, in fact, not as mature as we want them to be and not understanding the repercussions of their actions. A 13-year-old does not have the same level of impulse control as a 30-year-old. Children sometimes do awful, terrible, tragic things, but they’re different people years later. And the Supreme Court recognized that.
Joseph: Pennsylvania law requires children to be charged as adults with certain crimes. Isn’t Franklin County’s district attorney just following the law?
Josh: Kinda. The way the law is written is that there is no juvenile jurisdiction for certain crimes, such as rape or murder. Once someone is charged with those offenses, there’s not a whole lot that can be done by the prosecutor. But that’s all after the charges are filed. There is nothing saying in a case like this what prosecutors must file. The charge is completely at their discretion.
Joseph: Do you have examples of prosecutors exercising their discretion?
Josh: Yes. In Franklin County, in fact. In 2011, a 10-year-old girl was accused of shaking a baby, resulting in the baby’s death. District Attorney Matt Fogal charged the girl with murder, but the charged was 3rd degree murder – a bailable offense. And though it was charged in adult court, Fogal said he wouldn’t oppose moving the case over to juvenile proceedings. In the new case involving the 13 year old, Fogal chose the criminal homicide charge. If the prosecutor chose manslaughter, the teen’s case would’ve been sent to juvenile court. If a 3rd degree murder charge had been filed, the teen would’ve been eligible for release on bail. But Fogal is saying he had no choice.
Joseph: So, Fogal isn’t being honest in saying that his hands are tied.
Josh: The direct file certainly creates lots of limitations to how things are done, but to sit and say that everyone’s hands are tied in a case like this is just wrong. They have discretion. They could have done something different, but they didn’t.
Joseph: Fogal has been on record supporting the Black Lives Matter movement. Does that support square with his charging decision in this case?
Josh: The boy was white, so we’re certainly not talking about the BLM issue, as far as race is concerned. But a big part of the conversation right now is at least asking actors within the criminal justice system to use discretion and to explain their actions. Where I think this case matters as far as the context with BLM is that prosecutors have used this law overwhelmingly against Black children. In 2017, charging records showed 460 children were charged in adult court, and 70 percent were Black children. Black children are 10-12 times more likely to be charged as an adult in Pennsylvania. These decisions are heavily affecting Black children, even if in this case it is not a Black child who is the focus of it.
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